San Luis Obispo Regional Transit Authority, San Luis Obispo, CA, 9-29-11

U.S. Department
of Transportation
Headquarters East Building, 5th Floor - TCR
1200 New Jersey Ave. SE
Washington, DC 20590
Federal Transit
Administration
September 29, 2011

Re: FTA Complaint Number 09-0057

     

Edward F. King
Executive Director
San Luis Obispo Regional Transit Authority
179 Cross Street, Suite A
San Luis Obispo, CA 93401

Re: FTA Complaint No. 09-0057

Dear Mr. King:

This letter is in response to a discrimination complaint the Federal Transit Administration (FTA) Office of Civil Rights received against the San Luis Obispo Regional Transit Authority (RTA) alleging a violation of the Americans with Disabilities Act of 1990 (ADA). The FTA Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation are in compliance with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the Department of Transportation’s (DOT) implementing regulations at 49 C.F.R. Parts 27, 37, and 38.

In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If FTA identifies what may be a violation, we first attempt to provide technical assistance to assist the public transit provider in complying with the ADA. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transit provider which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.

The complainant, [name withheld], raised allegations that an RTA driver discriminated against her when she brought her portable oxygen concentrator aboard the bus. She stated that she was not permitted to sit in a seat without a forward-facing seat in front of her. The driver asserted that this type of oxygen carry-on must be secured behind one of the forward-facing seats on the bus. RTA’s subsequent response affirmed this policy, despite acknowledging that the bus driver, who is no longer employed by RTA, handled the situation poorly by not assisting [the complainant] in finding another seat or helping to secure the concentrator.

We appreciate the thoroughness and promptness of RTA’s response to our information requests during our investigation. Our communications help us gain a more complete picture of the situation at RTA.

We must follow-up on a few points. Our communications confirm that RTA classified [the complainant’s] portable oxygen concentrator as an “oxygen tank,” which RTA requires to be stored behind a forward-facing seat. Pursuant to DOT ADA regulations at 49 C.F.R. § 37.167(h), a transit provider “shall not prohibit an individual with a disability from traveling with a respirator or portable oxygen supply, consistent with applicable DOT rules on transportation of hazardous materials.” Appendix D to Part 37 explains that under the DOT hazardous materials rules, a passenger may bring a portable medical oxygen supply on board a vehicle. Since the hazardous materials rules permit this, transit providers cannot prohibit it.

The DOT hazardous materials guidance for safe transportation of medical oxygen for personal use on buses identify, in relevant part, additional measures when transporting medical oxygen cylinders in the passenger compartment. However, the Pipeline and Hazardous Materials Safety Administration (PHMSA) has determined that portable oxygen concentrators are not hazardous materials, and do not require the same level of special handling as compressed oxygen cylinders as the oxygen pressure does not exceed 40.6 psia at 20 degrees centigrade. [The complainant’s] oxygen concentrator is therefore not subject to the same requirements for transportation as an oxygen “tank.”

With this in mind, RTA cannot prevent [the complainant] from bringing the oxygen concentrator aboard, and cannot require that she secure it behind a forward-facing seat.

In light of these concerns, we request more information on RTA’s plans for ensuring compliance with the DOT ADA regulations. Specifically, please confirm that portable oxygen concentrators are not treated the same as compressed oxygen cylinders when brought aboard buses by passengers, and that those using them, such as [the complainant], are not required to move to a seat behind a forward-facing seat.

Please send your response to my attention within 30 calendar days of the date of this letter at the address above. With your response, include copies of any written policies or instructions implementing the practices. If any practices are under development, please explain the steps that are being taken and provide an estimated timeline for implementation.

If you have any questions regarding this inquiry, please contact me or Aaron Meyers at (202) 366-3055 or via e-mail at aaron.meyers@dot.gov. Any further correspondence should reference FTA Complaint No. 09-0057. A copy of our letter to the complainant is attached for your records.

Sincerely,

 

John R. Day
ADA Team Leader
Office of Civil Rights

Attachment

cc: FTA Region 9


Attachment: Letter to Complainant

Re: FTA Complaint No. 09-0057

Dear [name withheld]:

This letter responds to your complaint against the San Luis Obispo Regional Transit Authority (RTA) alleging discrimination on the basis of disability. The Federal Transit Administration (FTA) Office of Civil Rights is responsible for civil rights compliance and monitoring, which includes ensuring that providers of public transportation are in compliance with the Americans with Disabilities Act of 1990 (ADA), Section 504 of the Rehabilitation Act of 1973, and the Department of Transportation’s (DOT) implementing regulations at 49 C.F.R. Parts 27, 37, and 38.

In the FTA complaint investigation process, we analyze allegations for possible ADA deficiencies by the transit provider. If FTA identifies what may be a violation, we first attempt to provide technical assistance to assist the public transit provider in complying with the ADA. If FTA cannot resolve apparent violations of the ADA or the DOT ADA regulations by voluntary means, formal enforcement proceedings may be initiated against the public transit provider which may result in the termination of Federal funds. FTA also may refer the matter to the U.S. Department of Justice for enforcement.

We apologize for the delay in our response. Each response is developed based on the specific facts and circumstances at issue. A determination resulting from a review of these facts is not intended to express an opinion as to the overall ADA compliance of that transit provider.

I. Allegations

In your complaint, you alleged that a RTA driver discriminated against you when you brought your oxygen concentrator on board the bus. Since you initially sat in a seat without a forward-facing seat in front of you, the driver required you to move to another seat where there would be a forward-facing seat in front of you. The purpose of this instruction, according to your complaint, was that it was RTA policy that oxygen tanks need to be placed behind a forward-facing seat.

Secondly, you alleged that RTA did not permit you to bring your scooter onto the fixed-route bus. However, you were subsequently able to secure a ride with your scooter on the ADA complementary paratransit bus.

II. Relevant ADA Requirements

Pursuant to DOT ADA regulations at 49 C.F.R. § 37.167(h), a transit provider “shall not prohibit an individual with a disability from traveling with a respirator or portable oxygen supply, consistent with applicable DOT rules on transportation of hazardous materials.” Appendix D to Part 37 explains that under the DOT hazardous materials rules, a passenger may bring a portable medical oxygen supply on board a vehicle. Since the hazardous materials rules permit this, transit providers cannot prohibit it.

The DOT hazardous materials guidance for safe transportation of medical oxygen for personal use on buses identify, in relevant part, additional measures when transporting medical oxygen cylinders in the passenger compartment. The guidance states that oxygen cylinders should be “secured to prevent movement and leakage.” “Secured” is used to mean “the cylinder is not free to move when the vehicle is in motion.” Secondly, the guidance also states that the oxygen cylinder should never be stored or secured in the aisle, and bus operators should make sure that the seating of passengers requiring oxygen does not restrict access to exits or use of the aisle.

Your oxygen supply, however, is not a “cylinder” but a portable oxygen concentrator. Oxygen concentrators do not carry an oxygen-filled “tank,” but instead supply oxygen through the use of a miniaturized compressor inside the device that pressurizes ambient air through a system of filters. These filters remove the nitrogen from the ambient air, concentrating the oxygen for the user. The Pipeline and Hazardous Materials Safety Administration (PHMSA) has determined that portable oxygen concentrators are not hazardous materials, and do not require the same level of special handling as compressed oxygen as the oxygen pressure does not exceed 40.6 psia at 20 degrees centigrade. Your oxygen concentrator is therefore not subject to the same requirements for transportation as a compressed oxygen cylinder.

You also allege that RTA did not permit you to bring your mobility scooter aboard a fixed-route bus. At the time of this incident, the DOT ADA regulations at 49 C.F.R. § 37.3 defined a “common wheelchair” as a mobility aid belonging to any class of three or four-wheeled devices, usable indoors, designed for and used by individuals with mobility impairments, whether operated manually or powered. A “common wheelchair” is one that did not exceed 30 inches in width and 48 inches in length measured two inches above the ground, and did not weigh more than 600 pounds when occupied. We note that effective October 19, 2011, the definition of “common wheelchair” no longer appears in § 37.3, and the definition of “wheelchair” has been revised to read “three- or more wheeled devices.” For purposes of this complaint, we have applied the definitions in effect at the time of the alleged incident.

In order to transport customers, a transit provider may require wheelchairs to be secured to the vehicle, provided that the transit operator has established such a policy. The DOT ADA regulations at 49 C.F.R. § 37.165(c)(3) allow a transit operator to establish a policy that requires all riders to have their wheelchairs secured while aboard a transit vehicle.

When the transit operator has a policy that requires securement, or if a rider asks that the wheelchair be secured, 49 C.F.R. § 37.165(f) the DOT ADA regulations requires transit personnel to use their best efforts to secure any mobility device that meets the regulatory definition of a common wheelchair, but cannot refuse to provide service if the passenger’s device cannot be secured to the transit operator’s satisfaction.

Additionally, the DOT ADA regulations at 49 C.F.R. § 37.173 require that all employees of a transportation provider are trained to proficiency as appropriate under the ADA. This training requirement applies to both technical tasks and human relations, and requires that every public contact employee understand the necessity of treating individuals with disabilities courteously and respectfully.

III. Analysis

In response to your complaint, we contacted RTA for an update on the actions it has taken to address your concerns. Regarding the first issue surrounding transportation and storage of your oxygen supply, RTA informed us that it no longer employs the bus operator with whom you experienced numerous issues. RTA also acknowledged that this operator did a very poor job of communicating this situation and managing it, as well as failing to assist you in finding another seat or helping you secure your oxygen.

With this in mind, RTA cannot prevent you from bringing the oxygen concentrator aboard, and cannot apply hazardous materials requirements that would apply to compressed oxygen cylinders. In its letter to you dated November 26, 2008, RTA incorrectly applied its policy towards portable oxygen tanks to your use of a concentrator. RTA’s oxygen tank requirement is not applicable to this situation, and its current policy is not consistent with DOT regulations.

Secondly, RTA’s November 26, 2008 letter to you, stating that a supervisor would make a determination as to whether it could safely transport your mobility scooter is patently incorrect. RTA does not have discretion whether or not to transport your scooter, so long as you scooter meets the definition of a common wheelchair. If it meets the definition of a wheelchair (or, at the time of this incident, a “common wheelchair”), then RTA must transport it, even if its configuration makes it difficult to properly secure. However, in subsequent correspondence with this office as recently as August 11, 2011, RTA confirmed that all of its ADA complementary paratransit vehicles are equipped to accommodate common wheelchairs and each of its fixed-route 35-foot buses have two ADA-compliant securement areas, and no longer asserted authority to determine whether or not it would transport a particular mobility device.

IV. Conclusion

We recognize that due to the passage of time, the problems cited in your complaint may no longer be an issue. However, if you are still experiencing service issues, and have found RTA to be non-responsive to your concerns, then you may wish to send our office additional information or file a new complaint.

As described above, actions taken by RTA regarding the transport of your oxygen and scooter were inconsistent with the regulatory obligations imposed upon it by the ADA. Our office is following up separately with RTA to ensure it takes corrective action on these issues, and reminding RTA of its continuing obligation to ensure that its personnel are adhering to the DOT ADA regulations. RTA has a continuing obligation to not restrict your seating options when transporting your oxygen concentrator and/or when traveling in your scooter.

The investigative portion of this complaint has concluded. We are therefore taking no further action and closing your complaint as of the date of this letter. If you have any questions, please contact me or Aaron Meyers at (202) 366-3055 or via e-mail at aaron.meyers@dot.gov. Any further correspondence should reference FTA Complaint No. 09-0057. Thank you for bringing this matter to our attention.

Sincerely,

 

John R. Day
ADA Team Leader
Office of Civil Rights

cc:
RTA
FTA Region 9